Citation Nr: 1333516 Decision Date: 10/24/13 Archive Date: 10/24/13 DOCKET NO. 11-03 687 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina THE ISSUES 1. Entitlement to an increased rating for mechanical low back pain with lower extremity radiculopathy, status post right lumbar hemilaminectomy and discectomy, currently assigned a 40 percent evaluation. 2. Entitlement to a total evaluation based upon individual unemployability due to service-connected disability (TDIU). REPRESENTATION Veteran represented by: Christopher Loiacono ATTORNEY FOR THE BOARD Shana Z. Siesser, Counsel INTRODUCTION The Veteran served on active duty from November 1989 to March 1992. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2010 rating decision of the Department of Veteran's Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina. The Veteran requested a hearing before the Board in his January 2011 VA Form 9. He was scheduled for such a hearing in July 2012; however, he failed to report for that proceeding. He has not requested that the hearing be rescheduled, nor has he provided good cause. Therefore, the Board deems the hearing request withdrawn. See 38 C.F.R. § 20.704(d) (2012). A review of the Virtual VA paperless claims processing system does not reveal any additional documents pertinent to the present appeal. The appeal is REMANDED to the Department of Veterans Affairs Regional Office. VA will notify the appellant if further action is required. REMAND The Veteran was afforded a VA examination in January 2010 in connection with his current claim for an increased evaluation. He told the examiner that he has incapacitating episodes two to three times per week, which each lasted 24 hours and required bed rest. However, there was no indication as to whether such bedrest was prescribed by a physician. An incapacitating episode is defined as a period of acute signs and symptoms due to intervertebral disc syndrome that requires bed rest prescribed by a physician and treatment by a physician. 38 C.F.R. § 4.71a, Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, Note (2). Therefore, on remand, the RO should obtain any outstanding treatment records that may document prescribed bedrest. Moreover, the January 2010 VA examiner indicated that the Veteran was unable to flex, extend, or rotate due to an inability to stand on his feet, yet also noted that he is able to walk 20 to 30 feet with a walker and did not have ankylosis. Based on the examination report, it is unclear as to whether the Veteran may more nearly approximate ankylosis. Therefore, the Veteran should be afforded another VA examination to ascertain the current severity and manifestations of his service-connected low back disability. The Board further notes that a decision on the claim for an increased evaluation could change the outcome of the Veteran's claim for TDIU. As such, the claims are inextricably intertwined. For this reason, the issue of entitlement to an increased evaluation the service-connected low back disability must be resolved prior to resolution of the claim for TDIU. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (the prohibition against the adjudication of claims that are inextricably intertwined is based upon the recognition that claims related to each other should not be subject to piecemeal decision-making or appellate litigation). Accordingly, a remand is required for the RO to adjudicate the inextricably intertwined issue. Accordingly, the case is REMANDED for the following action: 1. The RO should request that the Veteran provide the names and addresses of any and all health care providers who have provided treatment for his low back disability, to include any bedrest prescribed by a health care provider. After acquiring this information and obtaining any necessary authorization, the RO should obtain and associate these records with the claims file. The RO should also secure any outstanding VA treatment records dated from January 2010 to the present. 2. The Veteran should be afforded a VA examination to ascertain the severity and manifestations of his service- connected mechanical low back pain with lower extremity radiculopathy, status post right lumbar hemilaminectomy and discectomy. Any and all studies, tests, and evaluations deemed necessary by the examiner should be performed. The examiner is requested to review all pertinent records associated with the claims file and to comment on the severity of the Veteran's service-connected spine disability. The examiner should report all signs and symptoms necessary for rating the Veteran's lumbar spine disability under the rating criteria. In particular, the examiner should provide the range of motion of the thoracolumbar spine in degrees and state whether there is any form of ankylosis. The examiner should also state the total duration of incapacitating episodes over the past 12 months (to include whether such bedrest was prescribed by a health care provider) and identify and describe all neurological manifestations of the service-connected spine disability. The presence of objective evidence of pain, excess fatigability, incoordination, and weakness should also be noted, as should any additional disability due to these factors. The examiner should indicate whether these factors result in disability more nearly approximating a form of ankylosis. In addition, the examiner should comment on the effect of the Veteran's service-connected low back disability on his ability to engage in any type of full-time employment and whether, in the examiner's opinion, the service-connected disability is of such severity to result in unemployability. It should be noted that consideration may be given to the Veteran's level of education, special training, and previous work experience, but not to his age or the impairment caused by nonservice-connected disabilities. A clear rationale for all opinions would be helpful and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. Because it is important "that each disability be viewed in relation to its history [,]" 38 C.F.R. § 4.1 , copies of all pertinent records in the appellant's claims file, or in the alternative, the claims file, must be made available to the examiner for review. 3. After completing these actions, the RO should conduct any other development as may be indicated by a response received as a consequence of the actions taken in the preceding paragraphs. 4. When the development requested has been completed, the case should be reviewed by the RO on the basis of additional evidence. If the benefit sought is not granted, the Veteran and his representative should be furnished a Supplemental Statement of the Case and be afforded a reasonable opportunity to respond before the record is returned to the Board for further review. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012). _________________________________________________ JESSICA J. WILLS Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2012).